3 Pa. Super. 566 | Pa. Super. Ct. | 1897
Opinion by
In November, 1895, an action of assumpsit was brought against Harris Flomenhaft on a forfeited recognizance for the appearance of one Fogelman to answer a criminal charge. The statement set forth a copy of the recognizance, and averred that it was duly adjudged and decreed to be forfeited on December 30, 1890. Flomenhaft filed an affidavit of defense, in which he admitted that he entered into the recognizance, and did not deny that it was duly adjudged to be forfeited, as alleged in the plaintiff’s statement. It is unnecessary to refer to the other matters alleged in his affidavit further than to say that they were wholly insufficient to constitute a defense to the action. A rule for judgment for want of a sufficient affidavit of defense was granted, which after argument was made absolute on June 12, 1896. No appeal was taken from this judgment, but on October 27, 1896, after two fi. fas. and a vend. ex. had issued and the defendant’s real estate was about to be sold, he applied for and obtained a rule to show cause why the forfeiture of the recognizance should- not be _ remitted, and the judgment be stricken off. It is to be observed, further, that although the defendant had knowledge, for a long time, of the forfeiture, he made no effort to have it remitted, or to produce Fogelman for trial. On the contrary it appears by the original affidavit of defense that he has departed the country.
The present appeal was taken from the order discharging the above mentioned rule.
As the order refusing to remit the forfeiture was entered in the court of quarter sessions, it is questionable whether an appeal — using that term in its original sense — lies. The act of December 9, 1783, 2 Sm. L. 84, provided that all recognizances forfeited in any court of quarter sessions should be sued for and be recoverable in the court of common pleas of the same
Under the act of 1783 it would seem that the court of common pleas, as well as the- court of quarter sessions, had jurisdiction of an application to remit or moderate the forfeiture of a recognizance entered in the latter court; and it was suggested in Com. v. Rhoads, 9 Pa. 488, that from the order of either court there would be an appeal to the Supreme Court. But in Bross v. Com., 71 Pa. 262 it was held, that the act gave an appeal only when the order was made in the common pleas. Said WmniAMS, J.: “ The suggestion in the ease of Com. v. Rhoads, that from the order of either court there is an appeal is a mere dictum not warranted by the language of the proviso or by any other provision of the statute, which are too plain to admit of any doubt as to their meaning.” To the same effect are Com. v. Oblender, 135 Pa. 536 ; and Com. v. Bird, 144 Pa. 194. Treating the present appeal as a substitute for a certiorari, and not as an appeal under the act of 1783, we discover no error in the record requiring a reversal of the judgment. Where there is a regular and formal forfeiture of a recognizance the liability of the recognizors is absolutely fixed thereby, and relief therefrom should be sought by petition to the court to respite the recognizance for cause to be shown under the act of 1783: Foulke v. Com., 90 Pa. 257. In a suit upon a recognizance the entry of a forfeiture stands for proof of all the steps necessary to complete the forfeiture, upon the principle omnia preesumunter rite esse acta; hence it must be taken for verity that the defendant and his bail were duly called and did not appear or answer: Fox v. Com. 81* Pa. 511; Com. v. Basendorf, 153 Pa. 459.
We are not to be understood as saying that the court may, under no circumstances, remit or modify the forfeiture of a recognizance after judgment, but only that it is not reversible error to refuse to do so for a cause which, if it has any merit at all, might have been pleaded when defense was made to the action.
Order affirmed, and appeal dismissed at the costs of the defendant.